Heather Jean Grahame v Bendigo and Adelaide Bank Limited (ACN 068 049 178)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0060

HEATHER JEAN GRAHAME	Applicant
v
BENDIGO AND ADELAIDE BANK LIMITED (ACN 068 049 178)	Respondent

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JUDGES:	KENNEDY and WALKER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 August 2021
DATE OF JUDGMENT:	16 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 222
JUDGMENT APPEALED FROM:	[2020] VSC 86 (Sloss J)

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PRACTICE AND PROCEDURE – Appeal from decision of trial judge upholding summary judgment against applicant – Procedural fairness – Self-represented litigant – Whether judge’s conduct gave rise to apprehended bias – Whether judge failed to provide appropriate assistance to applicant – No unfairness – Whether applicant’s defence and counterclaim had no real prospect of success – Whether judge otherwise erred in granting summary judgment – Appeal dismissed – Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; Daher v Bell [2020] VSC 346, considered.

PRACTICE AND PROCEDURE – Application to amend application for leave to appeal –Where amendment raises serious allegations without evidential foundation – Whether proposed amendment scandalous – Whether proposed amendment doomed to fail – Leave to amend refused – Northern Health v Kuipers [2015] VSCA 172; Manolakis v Carter [2008] FCA 505, Gunnarsson-Wiener v Iles [2020] TASFC 1, considered – Supreme Court (General Civil Procedure) Rules 2015 rr 27.07(b), 36.01.

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APPEARANCES:	Counsel	Solicitors
For the applicant	No appearances
For the respondent	Ms C F Gobbo	Cornwalls

KENNEDY JA
WALKER JA:

A. Introduction and summary

In 2016 the applicant, Heather Jean Grahame, entered into a contract (‘the Loan Agreement’) for a home loan (‘the Loan’) with the respondent (‘the Bank’). The Loan was secured by a mortgage over land owned by Ms Grahame at 6 Croom Street, Warburton in the State of Victoria (‘the Land’). In September 2018 Ms Grahame defaulted under the Loan Agreement. Following that default, in September 2018 the Bank served default notices on Ms Grahame. She failed to comply with those notices and, in November 2018, the Bank commenced proceedings against Ms Grahame seeking to recover the Land.

In July 2019 a Judicial Registrar granted the Bank’s application for summary judgment. In August 2019 Ms Grahame lodged a notice of appeal against the orders of the Judicial Registrar. She also filed a counterclaim against the Bank in September 2019. In October 2019 a warrant of possession was issued by the Sheriff and the Bank took possession of the Land. On 4 December 2019 the appeal was heard by the trial judge by way of a hearing de novo. Ms Grahame was unrepresented.

On 4 May 2019 the trial judge dismissed the appeal (save for allowing the appeal in so far as the judgment of the Judicial Registrar had failed so specify an ascertainable sum as the judgment debt).[1] Ms Grahame now seeks leave to appeal from the orders dismissing the appeal and from the trial judge’s order as to costs. Her proposed grounds of appeal can be summarised as follows:
[1]Bendigo and Adelaide Bank Ltd v Grahame [2020] VSC 86 (‘Reasons’).

(a) Ground 1: Apprehension of bias, by reference to the following sub-grounds:

(i) That the trial judge pre-judged the issue of whether money provided to Ms Grahame by the bank on a line of credit was a ‘loan’.

(ii) That on the first stay application the trial judge had unfair expectations of Ms Grahame, as a self-represented litigant, and her Honour’s conduct gave rise to a reasonable apprehension that she was not considering Ms Grahame’s arguments on their merits.

(iii) That the trial judge was critical of Ms Grahame for impermissibly withdrawing certain admissions she had made in her pleadings.

(iv) That in her judgment the trial judge referred to authorities cited by the Bank, failed to refer to certain authorities mentioned in the applicant’s written submissions, and referred to new authorities.

(v) That in her judgment the trial judge suggested that the applicant had lied.

(vi) That there is an institutional bias against self-represented litigants who raise novel or unusual claims.

(b) Ground 2: The trial judge erred in concluding that Ms Grahame’s defence and her counterclaim had no real prospect of success.

(c) Ground 3: The trial judge failed to exercise due caution in granting summary judgment for the bank, as required by Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd.[2]

(d) Ground 4: The trial judge erred in failing to consider whether under s 64 of the Judiciary Act1903 (Cth) the matter should proceed to trial despite her finding that there was no prospect of success, because the matters raised are of public importance.

(e) Ground 5: The trial judge erred by placing efficiency ahead of justice.

[2](2013) 42 VR 27; [2013] VSCA 158 (‘Lysaght’).

The questions of law identified by Ms Grahame are as follows:

1.The primary judge was not independent and impartial; denial of natural justice.

2. The primary judge failed to properly exercise her discretion.
3. The primary judge failed to apply the relevant test.

Ms Grahame seeks an order allowing the appeal and orders consequent on that order.

Ms Grahame also now seeks leave to amend her application for leave to appeal. We deal with that application at the conclusion of our reasons.

Ms Grahame’s proposed grounds of appeal have no prospects of success. For the reasons that follow, her application for leave to amend the application for leave to appeal is refused and leave to appeal is refused.

We heard this matter via videolink on 9 August 2021, at a time when public health directions were in place in response to Covid-19. Ms Grahame was informed of the arrangements for the hearing of the appeal, but she did not appear at the hearing. She informed the Court by email in advance of the hearing that she did not wish to appear. She did not otherwise object to the hearing taking place, or to it occurring via videolink.

B. Factual background

On 8 November 2016, Ms Grahame accepted and signed an offer from the Bank for the Loan. On 12 December 2016, the Bank advanced the sum of $144,650 to Ms Grahame pursuant to the Loan Agreement. By a mortgage dated 12 May 2015 and registered over the Land on 10 June 2015, Ms Grahame mortgaged the Land to the Bank as security for the monies advanced under the Loan Agreement.

On 17 November 2017, the original home loan offer was varied and the amount the Bank offered to loan was increased. Pursuant to that variation, on 23 November 2017 the Bank advanced the further sum of $20,000 to Ms Grahame, which amount was also secured by the mortgage over the Land.

On 28 January 2018, Ms Grahame wrote to the Bank notifying the Bank of various concerns she had about the Loan and requesting, amongst other things, documentation proving the Bank loaned money it already had in its possession, and documentation showing the contract was fair and that neither party had a particularly greater advantage or risk than the other party. In that letter, Ms Grahame stated that if the Bank did not provide such documentation within 30 days, then the home loan contract would be regarded as ’null and void’. The Bank did not provide such documentation to Ms Grahame.

By letter dated 8 February 2018, the Bank replied to Ms Grahame’s 28 January 2018 letter. In its reply, the Bank stated, amongst other things, that the ‘[t]he loan contract is a legally binding document’. Ms Grahame sent a letter dated 19 February 2018 to the Customer Feedback Officer of the Bank and separately posted a copy of that letter to the then CEO and Managing Director of the Bank. In that letter, Ms Grahame stated that if the Bank provided to her, by 27 February 2018, ‘substantial documentary evidence that proves the home loan contract is lawful’, then she would pay any outstanding loan repayments and the contract would be legally binding on both parties. Ms Grahame further stated that if the Bank did not provide to her by 27 February 2018 substantial documentary evidence that proves the home loan contract is lawful, then her assertion that it was unlawful would stand as true, and it would be ‘presumed that both parties [agreed] that the contract is unlawful and therefore null and void’. The Bank provided no such documentary evidence to Ms Grahame by 27 February 2018 and did not respond in any substantive manner to Ms Grahame’s further demands and allegations.

On 14 September 2018, Ms Grahame defaulted under the Loan Agreement. On 19 September 2018, the Bank served default notices. Ms Grahame did not comply with those notices. On 18 November 2018, Ms Grahame purported to perform an ‘acceptance for value’ on a printed statement of account for the loan account conducted under the Loan Agreement. Ms Grahame said that she had posted the original of the loan account document to the Department of Treasury and a copy to the Bank, together with a covering letter. She said that, as a result of the ‘acceptance for value’ which she had performed, she expected that the Treasury would, in due course, issue credit to the Bank in the amount of $166,381.53. That amount would then be offset against the outstanding mortgage debt.

Ms Grahame also said that she had entered into a ‘security agreement’ with ‘the entity HEATHER JEAN GRAHAME’, and that she had ‘performed an assignment of the reversionary interest’ on her birth certificate, with the effect that she was ‘no longer liable for the debts of HEATHER JEAN GRAHAME’.

C. Procedural history

On 21 November 2018, the Bank commenced proceedings number S ECI 2018 02347 against Ms Grahame by way of a writ and statement of claim seeking, amongst other matters, to recover the Land over which it holds a first registered mortgage. On 30 December 2018 Ms Grahame filed a defence and counterclaim.

By summons filed on 1 March 2019, the Bank sought summary judgment in respect of its statement of claim and Ms Grahame’s defence and dismissal of the counterclaim. The Bank’s summons was heard by the Judicial Registrar on 1 April 2019. On 19 July 2019, the Judicial Registrar delivered her reasons for judgment, granted the Bank’s application, and made the following orders:

1.The Plaintiff is entitled to possession of the land known as 6 Croom Street, Warburton in the State of Victoria being the land described as:
a.Lot 25 and 26 on Plan of Subdivision 001383 in Certificate of Title Volume 03330 Folio 872; and
b.Lot 1 on Title Plan 741833D in Certificate of Title Volume 05579 Folio 638.

2.The Defendant pay the Plaintiff the sum of $166,702.87 plus interest (calculated pursuant to a loan agreement dated 8 November 2016 (as varied on 17 November 2017)) from 16 November 2018 until the date of payment.

3. The Defendant's Counterclaim filed 30 December 2018 is dismissed.
4.The Defendant pay the Plaintiff's costs (including costs reserved and including the application for summary judgment) of and incidental to the claim and counterclaim in the proceeding on an indemnity basis, such costs to be taxed in lieu of agreement.

By notice of appeal filed on 2 August 2019, Ms Grahame, appealed against the whole of the orders and judgment made by the Judicial Registrar on 19 July 2019. In her notice of appeal, Ms Grahame listed five grounds of appeal, which may be summarised as follows:

(a) she was not given adequate opportunity to provide explanations and supporting evidence for her claims;

(b) in her reasons the Judicial Registrar failed to consider Ms Grahame’s claim that the Bank engaged in ‘deceit, fraud and unconscionable behaviour’;

(c) at [50] and [51] of her reasons the Judicial Registrar ‘advance[d] her own argument in support of the [Bank’s] case’;

(d) the Judicial Registrar erred in concluding, at [108] of her reasons, that Ms Grahame’s name refers to Ms Grahame whether it is written in capital letters or not; and

(e) the Judicial Registrar failed to take into account Ms Grahame’s submission that Ms Grahame ‘had sent her assignment of reversionary interest documents to the Department of the Treasury [of the Commonwealth of Australia] and the [ATO] and that, as a result, she no longer pays tax.’

The primary relief sought by Ms Grahame was that the Court dismiss the Bank’s applications for summary judgment and summary dismissal of her counterclaim.

Following the filing of the notice of appeal from the decision of the Judicial Registrar, the following events occurred:

(a) On 14 August 2019, the Bank made an application to the Sheriff for the issue of a warrant of possession. Following its issue, the warrant of possession was executed by the Sheriff on 17 October 2019, and the Bank has been in possession of the Land since that date.[3]
[3]Reasons [6].

(b) On 5 September 2019, Ms Grahame made an application to the trial judge seeking leave to amend her defence and counterclaim and to stay the orders made by the Judicial Registrar pending the outcome of the appeal. Those applications were heard on 19 September 2019 and the trial judge made orders that day giving Ms Grahame leave to amend her defence and counterclaim and dismissing her application for a stay. When leave to amend was given the trial judge stated that this was ‘not an invitation to withdraw admissions and that if [Ms Grahame] seeks to withdraw admissions, they would have to be the subject of an application for leave…’.[4]
[4]Reasons [7].

(c) On 23 September 2019, Ms Grahame filed and served her amended defence and counterclaim incorporating the additional grounds she sought to rely upon. In her amended defence and counterclaim, Ms Grahame purported to withdraw several of the admissions she had made in her (original) defence.[5]
[5]Reasons [9].

(d) On 1 October 2019, the Bank filed and served its reply to Ms Grahame’s amended pleading.[6]

(e) On 4 November 2019, Ms Grahame purported to perform a further ‘acceptance for value’ on the Treasury by sending a copy of the orders made by the Judicial Registrar to the Department of Treasury, with a copy to the Supreme Court.

(f) On 6 November 2019, Ms Grahame made further application seeking a stay of orders 1(a) and (b) made by the Judicial Registrar pending the outcome of the appeal, and for orders allowing her to live in the premises the subject of the Bank’s mortgage. That application was heard and dismissed by the trial judge on 18 November 2019.[7]

[6]Reasons [10].

[7]Reasons [8].

On 4 December 2019, Ms Grahame’s appeal against the decision of the Judicial Registrar was heard before the trial judge. The appeal proceeded as a hearing de novo.[8]
[8]Reasons [15].

In its statement of claim, the Bank pleaded the essence of its case as follows:

(a) at the request of Ms Grahame, it advanced monies to her under a loan agreement, as varied, conducted in account number 699466116 (the ‘Loan Agreement’);

(b) there were terms and conditions of the Loan Agreement, inter alia, that:

(i) Ms Grahame would make payments to the Bank pursuant to the Loan Agreement; and

(ii) Ms Grahame would provide the Bank with security for the monies so advanced;

(c) by instrument of mortgage dated 12 May 2015 and registered in the Land Titles Office on 10 June 2015 in dealing number AL946995D (the ‘Mortgage’), Ms Grahame, being the registered proprietor of the Land, mortgaged the Land to the Bank;

(d) Ms Grahame mortgaged the Land to the Bank to secure her obligations under the Loan Agreement;

(e) Ms Grahame has made default under the Loan Agreement and the Mortgage;

(f) by a default notice dated 19 September 2018, served on Ms Grahame by post (in pre-paid priority post envelopes) the Bank required payment of arrears under the Loan Agreement and the Mortgage within 31 days after service;

(g) Ms Grahame failed, refused or neglected to remedy the default and pay to the Bank the amount outstanding under the Loan Agreement and the Mortgage within the time specified;

(h) in accordance with the Loan Agreement, Ms Grahame must pay to the Bank interest charges at the variable interest rate applicable from time to time on any amount outstanding under the Loan Agreement and, as at 16 November 2018, the applicable rate was 4.48 per cent per annum;

(i) Ms Grahame has made default under the instrument of Mortgage and the payment of monies thereby secured (including principal and interest) and is still in default of payment of those monies;

(j) the Bank is entitled to possession of the Land pursuant to the terms and conditions of the instrument of Mortgage and/or pursuant to the provisions of s 78(1)(b) of the Transfer of Land Act 1958.

By her Amended Defence and Counterclaim, Ms Grahame alleged that:

(a) the named defendant is not the customer of the Bank;

(b) the Loan Agreement was not a loan but rather an exchange for a promissory note;

(c) the Bank engaged in misleading and deceptive conduct by falsely representing that the Loan Agreement was a loan;

(d) the Bank engaged in unconscionable conduct by deliberately and fraudulently attempting to mislead Ms Grahame so as to procure financial gain;

(e) the Loan Agreement is void and/or unenforceable and that the Bank had agreed with this claim through tacit acquiescence and therefore her obligations under the contract were not binding;

(f) the contract is unenforceable because it is grossly unfair;

(g) previous loans to Ms Grahame are relevant to be considered (and form the basis for Ms Grahame’s restitution (unjust enrichment) counterclaim);

(h) by performing an ‘acceptance for value’ on 18 November 2018, Ms Grahame directed the Treasury to pay $166,381.53 to the Bank thereby offsetting the alleged debt;

(i) Ms Grahame claimed non-economic damages for emotional distress (arising from the alleged unconscionable conduct, misleading and deceptive conduct and unfair contract claim);

(j) Ms Grahame claimed pecuniary penalties and injunctive relief.

By its Summons filed on 1 March 2019, the primary relief the Bank sought was summary judgment in respect of both its statement of claim and Ms Grahame’s amended defence and amended counterclaim, pursuant to ss 61, 62 and 63 of the Civil Procedure Act 2010 (the ‘CPA’) and rr 22.03 and 22.16 of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’). Alternatively, the Bank sought orders that Ms Grahame’s amended defence and amended counterclaim be struck out pursuant to rr 23.01 and 23.02 of the Rules.

In its written outline, the Bank submitted that the amended defence did not identify any defence in respect of which Ms Grahame has a reasonable prospect of success or, in the case of the amended counterclaim, a cause of action against the Bank on which she has a reasonable prospect of success. Rather, the Bank contended that the allegations made by Ms Grahame in her amended defence and amended counterclaim were ‘embarrassing, scandalous, vexatious and an abuse of the Court’s process’, ‘embarrassing and unintelligible and … not supported by any evidence’ and ‘do not disclose a cause of action against it’.

The Bank further contended that the amendments Ms Grahame made to the defence and counterclaim did not render the defence and counterclaim in conformity with the Rules, and that the amended defence and counterclaim were amenable to summary dismissal or strike out in much the same manner as the document which preceded it.

On 4 May 2020, the trial judge handed down her decision. Her Honour was satisfied that the Bank had established its cause of action against Ms Grahame. Accordingly, her Honour determined that the Bank was entitled to enforce its Mortgage and recover possession of the 6 Croom Street property; and that further or alternatively, the Bank was entitled to repayment in full of the amount outstanding pursuant to the Loan Agreement.[9]
[9]Reasons [166].

Her Honour was also satisfied that none of Ms Grahame’ and counterclaims (as set out in her pleadings and elaborated upon in her affidavits and submissions) had any real prospects of success.[10] Further, having reviewed and considered all of the material relied upon by Ms Grahame, her Honour was not satisfied that there was any other question which emerged that ought to be tried.[11] In those circumstances, her Honour was satisfied that it was in the interests of justice to summarily dispose of both the main proceeding and the counterclaim.[12] The Bank’s application for summary judgment, in respect of both its statement of claim and the amended counterclaim was granted. Ms Grahame’s appeal was dismissed.
[10]Reasons [167].
[11]Ibid.
[12]Ibid.

D. The trial judge’s reasons

The trial judge commenced her analysis by observing that an appeal from a decision from a Judicial Registrar is an appeal de novo. Thus it now fell to her Honour to determine the Bank’s application for summary judgment without being fettered by the decision of the Judicial Registrar. Her Honour went on to set out, correctly, the principles relevant to an application for summary judgment, by reference to Lysaght[13] and Hausman v Abigroup Contractors Pty Ltd.[14]
[13](2013) 42 VR 27; [2013] VSCA 158.
[14](2009) 29 VR 213; [2009] VSCA 288.

Following a review of the evidence, the trial judge concluded that the Bank had made out its cause of action. Her Honour held that she was satisfied that the evidence established the essential elements of the Bank’s cause of action, as follows:

(a)A home loan offer was accepted and signed by the defendant and dated 8 November 2016.
(b)On 12 December 2016, the plaintiff advanced the sum of $144,650 to the defendant pursuant to the home loan.
(c)The home loan obtained by the defendant was operated in account number 699466116.
(d)On 17 November 2017, the original home loan offer was varied and the amount offered to be loaned by the plaintiff was increased.
(e)On 23 November 2017, the plaintiff advanced the further sum of $20,000 to the defendant.

(f) The defendant owns the Land.
(g)By mortgage dated 12 May 2015 and registered over the Land, the defendant mortgaged the Land to the plaintiff as security for the monies advanced under the home loan.

(h) The defendant has defaulted under the home loan.
(i)The plaintiff has served default notices. Those notices have not been complied with by the defendant.
(j)Pursuant to s 78(1) of the Transfer of Land Act 1958, the plaintiff is entitled to possession of the Land.[15]

[15]Reasons [62] (citations omitted).

The trial judge held that the Bank had demonstrated an entitlement to enforce its Mortgage and recover possession of the Land. She also held that the Bank was entitled to repayment of the monies outstanding pursuant to the Loan Agreement and Mortgage entered into by Ms Grahame. In relation to the quantum of the monies outstanding, the trial judge held that, as at 11 November 2019, the amount owing to the Bank by Ms Grahame pursuant to the Loan Agreement and the Mortgage was $225,004.03 and that costs and interest continued to accrue on that amount pursuant to the terms of the Loan Agreement and the Mortgage.[16]
[16]Reasons [63].

The trial judge summarised Ms Grahame’s defence and counterclaim as follows:

(a) The named defendant is not the customer of the Bank;
(b) The Loan Agreement was not a loan but rather an exchange for a promissory note;
(c) The Bank engaged in misleading and deceptive conduct by falsely representing that the Loan Agreement was a loan;
(d) The Bank engaged in unconscionable conduct by deliberately and fraudulently attempting to mislead the Customer so as to procure financial gain;

(e) The Loan Agreement is void and/or unenforceable;
(f) The contract is unenforceable because it is grossly unfair;
(g) Previous loans to the defendant are relevant to be considered (and form the basis for the defendant’s restitution (unjust enrichment) counterclaim);
(h) By performing an ‘acceptance for value’ on 18 November 2018, the defendant directed the Treasury to pay $166,381.53 to the plaintiff thereby offsetting the alleged debt;
(i) The defendant claims non-economic damages for emotional distress (arising from the alleged unconscionable conduct, misleading and deceptive conduct and unfair contract claim); …[17]

[17]Reasons [67].

Her Honour went on to observe as follows:

In her affidavit affirmed on 21 November 2019, Ms Grahame acknowledges that she has ‘put forward a variety of unusual claims in this case’, stating:
[1]I have put forward a variety of unusual claims in this case, including the proposition that banks don’t loan money, the existence of the corporate entity that has my full name in all-capital letters, and the use of commercial administrative procedures such as acceptance for value and assignment of the reversionary interest of the birth certificate.
[2]I am aware that there is a plethora of cases in which other self-represented litigants have advanced similar arguments and been unsuccessful. Counsel for the plaintiff have, in their various submissions, listed several of these authorities.

Several of the cases in which similar arguments were advanced by other self-represented litigants are noted by Black J in the recent decision in K Sheridan v Colin Biggers Paisley.
In the course of dealing with the plaintiff’s summary judgment application, I have considered at some length the affidavit material filed by the defendant in support of her claims, her written submissions and her oral submissions on the hearing of the appeal. Having done so, I am of the view that none of the grounds advanced by Ms Grahame in either her amended defence or amended counterclaim demonstrates a defence or a tenable cause of action that could be viewed as having any real prospects of success. I have set out in a summary way below the conclusions I have reached on each of the major grounds advanced by the defendant. As will be noted, there is a degree of overlap between some of those grounds.[18]

[18]Reasons [68]–[70] (citations omitted).

As to paragraph (a), above, namely that the named defendant was not the customer of the Bank, her Honour concluded as follows:

Ms Grahame was unable to refer the Court to any decided cases, or propositions of law, that support her contention that there is in existence a corporate entity ‘HEATHER JEAN GRAHAME’, that is separate and distinct from her — the living person Heather Jean Grahame — that is the defendant as listed on the Bank’s statement of claim, Loan Agreement, Mortgage and default notice. ... She acknowledges that she is the ‘Customer’ of the plaintiff and that she did sign the Loan Agreement and agreed to provide security, and that she received the default notice from the plaintiff.
In the circumstances, I am not satisfied that Ms Grahame has demonstrated any basis upon which the Court could reasonably find that the person listed on the Bank’s statement of claim, Loan Agreement, Mortgage and default notice is other than the named defendant, Heather Jean Grahame, whether spelt in capital letters or a mixture of capital and lower case letters. In my view, her contention that there is relevantly in existence a corporate entity that is separate and distinct from her is untenable.[19]

[19]Reasons [86] (citations omitted).

As to paragraph (b), above, namely that the Loan Agreement was not a loan, but a promissory note, her Honour concluded as follows:

When the defendant was taken to the bank account statements for the alleged loan, she confirmed that she is not challenging that the statements recorded the advance of monies; rather, she is challenging that the Bank has ‘loaned’ money. She acknowledges that while the Bank statement ‘shows that there's a debit...under the title of HJ Grahame’ and that ‘it does show that money has been advanced’, she submits that ‘the bank account statement doesn't show the source of the funds that it has advanced therefore it's no proof that the money has been loaned.’
The defendant did not point to any legal requirement that the Bank must identify the source of the funds it has advanced before the transaction can be treated as a ‘loan’, and I am unaware of any such requirement. In the present case, the documentation relied upon by the Bank records that monies were advanced by it to the defendant. Given the clear acknowledgements made by the defendant to the effect that the Bank has advanced monies to her, and that she is required to ensure that both the principal and associated administrative fees are repaid, it is difficult to understand why the interest payments she undertook to make as part of those same arrangements would stand in any different position. The contractual arrangement entered into between the Bank and the defendant made clear that interest was payable on the amounts advanced.
…
I reject the notion that the advance of the monies to Ms Grahame was a transaction otherwise than by way of loan. The Loan Agreement entered into between the parties in the present case plainly records a loan from the Bank to Ms Grahame, which is repayable by her with interest and credit fees and charges according to the ‘Financial Table’ set out in clause 3 of the Loan Agreement. In my view, essentially for the reasons advanced by the Bank, and as elaborated upon by [the Judicial Registrar] in her reasons, the Loan Agreement in the present case cannot be characterised as a promissory note.
Ms Grahame acknowledges that she is obliged to repay the Bank albeit that she disputes any requirement to make payments of interest. In circumstances where the moneys have been advanced by the Bank and those moneys are required to be repaid in accordance with the terms of the Loan Agreement, it is incumbent upon Ms Grahame to repay any moneys outstanding, including any applicable interest, in accordance with the terms of that agreement.[20]

[20]Reasons [95]–[96], [100]–[101] (citations omitted).

As to paragraph (c), above, namely that the Bank engaged in misleading and deceptive conduct by falsely representing that the Loan Agreement was a loan, her Honour concluded that, because there was no requirement at law that the Bank must demonstrate to the customer that the moneys it lent were sourced from ‘its own stored money’:

[A]ny claim that the Bank falsely represented that the transaction was one by way of loan is doomed to fail. Further, in circumstances where Ms Grahame now acknowledges that ‘the Bank advanced moneys to the Customer’, and the documentation relied upon by the Bank evidences clearly that it did so, the defendant’s misleading and deceptive conduct claim is misconceived and, in my view, it has no reasonable prospects of success.[21]

[21]Reasons [103] (citation omitted).

As to paragraph (d), above, namely that the Bank engaged in unconscionable conduct by deliberately and fraudulently attempting to mislead the Customer so as to procure financial gain, her Honour observed that there was nothing in the evidence to suggest that Ms Grahame was under any ’duress, special disadvantage or special disability’ when entering into the Loan Agreement, or that the Bank exerted undue influence on her. The trial judge concluded as follows:

The basis of Ms Grahame’s pleaded claim that there has been unconscionable conduct on the part of the Bank is effectively her assertion that the Bank loaned her credit instead of money, and ‘did not loan any money it already had in its possession and stores’. But, as noted above, Ms Grahame now acknowledges that ‘the Bank advanced moneys to the Customer’, and there is no legal requirement that the Bank must identify the source of the funds it has advanced before the transaction can be treated as a ‘loan’. In these circumstances, on the material before the Court, it is difficult to see how any special disadvantage or like condition is manifested which would be capable of providing a credible foundation for the Court to find that there was relevantly any unconscionable conduct of the kind contended for by the defendant.[22]

[22]Reasons [112] (citation omitted).

Her Honour concluded that Ms Grahame’s unconscionable conduct claim had no real prospects of success.[23]
[23]Reasons [115].

As to paragraph (e), above, namely that the Loan Agreement was void and/or unenforceable, this claim was based on Ms Grahame’s letters to the Bank, summarised above, on 28 January 2018 and 19 February 2018. Ms Grahame asserted that the Bank had agreed with this claim through ‘tacit acquiescence’. Her Honour concluded as follows:

It is unclear precisely what acts, facts, matters or things the defendant relies upon as support for her contention that the Bank was required to prove that the Loan Agreement and mortgage were lawful, failing which they would be taken to be null and void. There is, as [the Judicial Registrar] noted, no requirement to that effect in either document — they ‘would be new terms’ and the ‘manner in which the defendant seeks to unilaterally impose these new contractual terms on the Bank without the Bank’s agreement has no legal basis.’ Further, as her Honour observed, ‘there is no statutory or common law requirement for the Bank to prove, to the defendant’s satisfaction or otherwise, that the Loan Agreement or Mortgage are lawful, failing which they are null and void.’
In those circumstances, there being no obligation on the part of the Bank to prove to the defendant’s satisfaction that the Loan Agreement and the mortgage were lawful, the defence advanced by Ms Grahame has no real prospects of success.[24]

[24]Reasons [120]–[121] (citations omitted).

As to paragraph (f), above, namely that the Loan Agreement was unenforceable because it was grossly unfair, her Honour concluded as follows:

[Ms Graham] was unable to point to any principle of law or legal authority to the effect that there was something unfair or unjust in a lender charging a borrower interest at normal commercial rates on moneys advanced by way of loan. In circumstances where the defendant has failed to proffer any ‘legal’ reason which would render the Loan Agreement unfair, within the meaning of the relevant legislation or otherwise, I am of the view that her defence based on the Loan Agreement being an unfair contract has no real prospects of success.[25]

[25]Reasons [134].

As to paragraph (g), above, namely that previous loans to Ms Grahame were relevant and formed the basis for the defendant’s restitution (unjust enrichment) counterclaim, her Honour concluded as follows:

In effect, through her restitution claim, Ms Grahame seeks to recover the benefit of all (or a substantial portion) of the moneys she has paid to the Bank by way of interest from the inception of her ‘foundational’ ‘home loan’ in 2014. … It appears that, having paid interest to the Bank under … earlier loan agreements, the defendant now seeks to recover the benefit of the amounts paid by way of interest, because she contends ‘it is unreasonable for the Bank to require the Customer to pay interest’.
… [B]ut her counterclaim does not give any particulars of why it is ‘unreasonable’ for the Bank to require her to pay interest. There is nothing per se unreasonable about a lender charging a customer interest at commercial rates on moneys loaned. In the present case, Ms Grahame has entered into a Loan Agreement with the Bank whereby she agreed that she will pay interest on the moneys it advanced to her, on the terms set out therein. In the case of each of the defences and claims raised by Ms Grahame, to the effect that the loan is unenforceable or that the Bank engaged in misleading and deceptive conduct or unconscionable conduct in relation to the loan, I have found that none of them has any real prospects of success. In the circumstances, for similar reasons, I am of the view that her claim that ‘it is unreasonable for the Bank to require [her] to pay interest’ also has no real prospects of success.[26]

[26]Reasons [137]–[138].

As to paragraph (h), above, namely that, by performing an ‘acceptance for value’ on 18 November 2018, the defendant directed the Treasury to pay $166,381.53 to the plaintiff, thereby offsetting the alleged debt, her Honour explained this argument as follows:

[Ms Grahame] says that the Bank acted unconscionably by instituting court proceedings against the Customer so as to procure money and the mortgaged property from the Customer even though … the Customer had shown to the Bank that she had performed an acceptance for value on an account statement and indicated that the Treasury would, in due course, issue an amount of $166,381.53 to the Bank so as to offset the alleged debt. Further, she contends that when the amount of the credit to be received from the Treasury ($166,381.53) is combined with the Customer’s previous payments to the Bank (totalling $385,035.22), it exceeds the Bank’s valid claim for the repayment of the principal amounts advanced, such that the Bank would be unjustly enriched if it were permitted to retain the excess funds.
… [Ms Grahame] deposed that as a precursor to this acceptance for value, she had ‘completed an assignment of reversionary interest on the birth certificate bond in the name of Heather Jean GRAHAME’ and having done so, she is ‘not liable for any debts in the name of the corporation/trading entity HEATHER JEAN GRAHAME’. Further, she said, she performed an ‘acceptance for value’ on the loan account statement in the amount of $166,381.53 and had informed the Bank by letter that she had done so.[27]

[27]Reasons [141]–[142] (citation omitted).

Her Honour also referred to Ms Grahame’s evidence as to the alleged assignment of the reversionary interest, noting that Ms Grahame had deposed as follows:

(47) On 25 July 2018, I entered into a security agreement with the entity HEATHER JEAN GRAHAME and attached this security agreement to a UCC (Uniform Commercial Code) financing statement which was filed in the UCC office at Washington, D.C. I also used as collateral on this filing the birth certificate, registration number 55486/1968, which I had accepted for value. The file number for that financing statement is 2018-206-1183-8. A copy of that UCC financing statement and the security agreement is attached (Exhibit V). …

(48) UCC financing statements act as a noticeboard of commercial events.
(49) The Corporation COMMONWEALTH OF AUSTRALIA is listed on the U.S. Securities and Exchange Commission (Central Index Key 0000805157) as having the business address of 1601 Massachusetts Ave NW, c/o Australian Embassy, Washington D.C. 20036, therefore it is appropriate and valid to file any commercial arrangement conducted within the Commonwealth of Australia to the UCC noticeboard based in Washington, D.C.
(50) On 25 July 2018, I filed a UCC financing statement (file number 2018-206-1188-3) wherein I made a full assignment of the birth certificate, registration number 55486/1968, to the Australian Department of the Treasury. A copy of this is attached (Exhibit W).
(51) Having completed a security agreement between myself, Heather Jean Grahame, and the corporate entity HEATHER JEAN GRAHAME, I am therefore the secured creditor of all property held in the name of HEATHER JEAN GRAHAME. This includes, but is not limited to, any registered land and bank accounts.

…
(55) I am the secured creditor of the registered land at 6 Croom Street, Warburton, and, as such, my claim is superior to that of the plaintiff.[28]

[28]Reasons [143].

The trial judge observed that, in her affidavit, Ms Grahame describes the process by which she contends a ‘bond’ is issued by the government following the birth of a child and then is ‘sold on stock markets for millions of dollars.’ Thereafter, she says, ‘[t]he government covertly transfers the liability of its debts onto the people by the use of corporate entities (or strawmen) which the government creates’, and ‘[t]hese corporate entities are sub-corporations of the government’. In her affidavit, Ms Grahame goes on to explain that ‘[t]he money the government receives when it sells a birth certificate bond is money that the government is entrusted with’ and for which it is responsible for ensuring that is ‘used wisely and appropriately for the benefit of the living being through their lifetime.’[29] Her Honour set out further detail of this aspect of Ms Grahame’s argument, which we need not traverse here.
[29]Reasons [144]–[145].

In relation to the acceptance for value argument, her Honour concluded as follows:

Having reviewed the material the defendant relies upon for her acceptance for value argument, I am not satisfied that it could be regarded as having any real prospects of success. The defendant was unable to point to any principle of law underlying it and so far as I can ascertain the concept has no support, acceptance or recognition under Australian law. But even if it did, the acceptance for value concept as explained by Ms Grahame could not operate to offset the debt she has incurred to the Bank.[30]

[30]Reasons [155].

As to paragraph (i), above, namely the claims non-economic damages for emotional distress (arising from the alleged unconscionable conduct, misleading and deceptive conduct and unfair contract claim), her Honour concluded as follows:

No doubt [Ms Grahame] has experienced real emotional distress as a result of her eviction from the property, but in pursuing execution of the Warrant of Possession the material before the Court demonstrates that the Bank has acted lawfully, and [Ms Grahame] was unsuccessful in the applications she made to the Court for a stay. Furthermore, during her oral submissions, [Ms Grahame] acknowledged that in circumstances where she has not repaid the principal sum or the administration fees, the Bank has the right to require repayment of the debt and to sell the property to recover its money.
As [Ms Grahame] has not succeeded in demonstrating that any of her pleaded claims for the alleged unconscionable conduct and misleading and deceptive conduct engaged in by the Bank and the alleged unfair (standard form) contract employed by the Bank have real prospects of success, no occasion arises for the Court to consider her claim for ‘non-economic damages’.[31]
[31]Reasons [160]–[161] (citation omitted).

E. Consideration

Under s 14C of the Supreme Court Act 1986, the Court of Appeal may grant an application for leave to appeal under s 14A only if it is satisfied that the appeal has a real prospect of success. We do not consider that Ms Grahame’s proposed grounds of appeal have any prospect of success, as we explain below.

Ground 1: Apprehension of bias

Ground 1 in the application for leave to appeal is a generalised allegation of apprehension of bias, followed by several distinct sub-grounds in support of that general allegation. The test for ostensible or apprehended bias was explained by the plurality in Michael Wilson & Partners Ltd v Nicholls as follows:

It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.[32]

[32](2011) 244 CLR 427, 437 [31] (Gummow ACJ, Hayne, Crennan and Bell JJ) (citations omitted) (emphasis added); [2011] HCA 48. See also Lancaster v The Queen (2014) 44 VR 820, 849–50 [104]; [2014] VSCA 333; Chopra v Department of Education and Training [2021] VSCA 36, [111].

The plurality went on to observe that in dealing with apprehension of bias, there is no inquiry as to the subjective state of mind of the judge. The question is not whether the judge in fact pre-judged an issue, but whether a fair minded lay observer might so apprehend.[33]
[33](2011) 244 CLR 427, 437 [33] (emphasis original); [2011] HCA 48.

In the present case, several of the sub-grounds relate to the way in which the trial judge is said to have dealt with Ms Grahame at the hearing. The principles applicable to the duties of a judge in proceedings in which a litigant is self-represented were recently summarised by Derham AsJ in Daher v Bell:

It is the duty of the Court in relation to represented and unrepresented litigants alike to ensure that a hearing or trial is conducted fairly and in accordance with law. Procedural fairness is ‘an essential attribute of a court’s procedure’. What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case. The judge cannot be the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. The judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. The assistance must be proportionate in the circumstances — it must ensure a fair trial and not afford an advantage to the self-represented litigant.
In the decision of the Court of Appeal in Roberts v Harkness, which was applied in Doughty-Cowell v Kyriazis, the Court made it clear that a litigant must have a reasonable opportunity of presenting his case. What amounts to a reasonable opportunity of presenting a case depends on the circumstances of the case, including the nature of the decision to be made, the nature and complexity of the issues in dispute, the nature and complexity of the submissions which the party wishes to advance, the significance to that party of an adverse decision (‘what is at stake’) and the competing demands on the time and resources of the court or tribunal.[34]

[34][2020] VSC 346, [8]–[9] (citations omitted). This summary was approved by the Court of Appeal in Daher v Bell [2021] VSCA 192, [13].

To similar effect is the following passage from Rajski v Scitec Corporation Pty Ltd:

In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement. ... An unrepresented party is as much subject to the rules any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.[35]

[35](New South Wales Court of Appeal, Kirby P, Samuels and Mahoney JJA, 16 June 1986) 14 (‘Rajski’).

It is convenient to address each of the sub-grounds in turn, by reference to the way they were developed by Ms Grahame in her written case and in oral argument before us.

Sub-ground A: Prejudgment of whether money was loaned

By sub-ground A, Ms Grahame alleges that the trial judge pre-judged the issue of whether money provided to Ms Grahame by the bank on a line of credit was a ‘loan’. This argument turned on the following propositions:

(a) a ‘loan’ involves the lender already being in possession of a thing and, in the process of lending it, losing the use of it;

(b) the Bank did not loan to Ms Grahame any money it already had in its possession;

(c) the Bank advanced credit to Ms Grahame and it is not logically possible to loan credit; and

(d) the Bank engaged in a process of credit creation and destruction, but this is not a loan because the Bank takes virtually no risk or is able to reduce its risk to zero.

It is necessary at the outset to say that, as the trial judge found, these arguments have no basis in law. There is no legal requirement that, in order for a transaction to be treated as a loan, the lender must identify the source of the monies it advances. Nor is it unreasonable for a lender to charge interest on monies advanced to a customer by way of credit. The trial judge was correct to conclude that this argument had no prospects of success.

Returning to sub-ground A, Ms Grahame argued that the trial judge had prejudged the issue of whether money was loaned, and was not open to hearing arguments that contrasted with her prejudgment. In her written case, Ms Grahame’s developed sub-ground A by reference to the way in which the trial judge conducted the hearing of the appeal on 4 December 2019. Ms Grahame asserts that the trial judge had pre-judged her arguments and that she interrupted Ms Grahame and was argumentative.

We have reviewed the transcript of the hearing before the trial judge. We make the following observations about what occurred at that hearing.

(a) At the outset the trial judge reassured Ms Grahame that she would have plenty of time to make her arguments.

(b) When Ms Grahame commenced her argument concerning the existence of a corporate entity ‘HEATHER JEAN GRAHAME’, the trial judge then clarified to Ms Grahame the nature of the Bank’s arguments.

(c) Following that clarification, Ms Grahame put her arguments in an extended and uninterrupted fashion (reflected across several pages of the transcript).

(d) The trial judge then sought to raise with Ms Grahame the arguments put by the Bank in relation to the moneys loaned to Ms Grahame by taking Ms Grahame through the documents relied upon by the Bank. She also asked various questions by which she sought to understand the nature of the arguments put by Ms Grahame, in particular Ms Grahame’s argument that she had performed an ‘acceptance for value’ and her argument that the advancement of moneys by the Bank to Ms Grahame was not a loan.

(e) Following those exchanges, which were plainly an attempt by the trial judge to ensure she understood the nature of Ms Grahame’s arguments, Ms Grahame was again allowed to make her submissions uninterrupted for an extended period.

(f) Then the trial judge again explained to Ms Grahame that she was trying to understand Ms Grahame’s arguments, but was having great difficulty doing so as a matter of law.

(g) Later in the hearing the trial judge offered to, and did, stand the matter down briefly so that Ms Grahame could gather her thoughts and make any final arguments that she might wish to make. The following exchange occurred:

HER HONOUR: Well, would you like me to just stand down for a few minutes, give you a time to just go through your notes and just check that there’s not - - -
MS GRAHAME: No.
HER HONOUR: I don't want to hurry you at all.
MS GRAHAME: Thank you.
HER HONOUR: Because I want to make sure that I've totally understood your arguments.
MS GRAHAME: Thank you. No. I'm just — I'm just taking in your Honour’s comments and I feel like you’re distilling it down to the basic issues. And I appreciate that. It's just taking me a minute to - - -
HER HONOUR: No, no. But I'm not wanting to hurry you. So I’m happy to give you just time on your own to just make sure that you've gone through the things you want to raise. It’s no trouble to me to stand down for five minutes and come back in five minutes’ time. You will have then had an opportunity to go through your notes without anybody rushing you. I want to be sure that you’ve – there's not some argument you haven't mentioned that you wanted to mention or something you wanted to clarify.
MS GRAHAME: Nothing worse than that. I can't think of anything but maybe just to satisfy - - -
HER HONOUR: All right. I will just stand down - - -
MS GRAHAME: Thank you, thank you.
HER HONOUR: - - - for five minutes and give you that opportunity.
MS GRAHAME: Thank you.
(Short adjournment)
HER HONOUR: Yes, Ms Grahame.
MS GRAHAME: Thank you, your Honour. I did need that extra five minutes, even though I didn't think I needed it. I — it - - -
HER HONOUR: That's all right. No. It’s just sometimes good to regroup and - - -
MS GRAHAME: It was very helpful.

It is apparent from the transcript that the trial judge dealt with Ms Grahame in a patient and appropriate manner, consistently with the principles set out above. She permitted Ms Grahame to make her submissions, she sought to ensure that she understood those submissions through appropriate questioning of Ms Grahame, and she sought to ensure that Ms Grahame understood the arguments the Bank had put in support of its application for summary judgment. She stood the matter down to enable Ms Grahame to formulate her arguments and to ensure Ms Grahame had every opportunity to make the submissions she wished to make. We discern no element of prejudgment or other form of bias in the trial judge’s treatment of Ms Grahame at the hearing.

It might fairly be said that the trial judge appeared to be sceptical of Ms Grahame’s admittedly novel arguments. Those arguments, as we explained above, have no basis in law. However, her Honour’s scepticism does not, in our opinion, reveal any basis for a fair minded lay observer to apprehend prejudgment. Rather, it reflects her Honour’s knowledge of the law and her appreciation that, on their face, Ms Grahame’s arguments lacked merit. In any event, the comments made by the trial judge in the course of the hearing were tentative, rather than final.[36] She engaged with the arguments and questioned Ms Grahame with a view to ascertaining from Ms Grahame the legal basis for her arguments. Ms Grahame was not able to provide any legal basis.
[36]See Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577, 610 [112] (Kirby and Crennan JJ), 635–6 [177]–[178] (Callinan J); [2006] HCA 55. See also Antoun v The Queen (2006) 224 ALR 51, 58–9 [28] (Kirby J); [2006] HCA 2.

Sub-ground A reveals no apprehension of bias on the part of the trial judge.

Sub-ground B: The conduct of the stay application

Sub-ground B is directed to the conduct of the trial judge on the first stay application, on 19 September 2019. Ms Grahame alleges that the trial judge ‘unfairly expected’ her, as an ‘untrained self-represented litigant, to understand the legal criteria for obtaining a stay pending an appeal’, and that her Honour’s conduct gave rise to a reasonable apprehension that she was not considering Ms Grahame’s arguments on their merits.

Ms Grahame does not challenge the judge’s refusal to grant a stay; rather, she relies upon the conduct of the trial judge at the hearing of the stay application as part of the basis for her challenge to orders 1, 3 and 4 made on 4 May 2021. The Bank did not contend that it was not open for Ms Grahame to rely upon the conduct of the stay application in seeking to make good her allegation of apprehended bias. However, the Bank observed that Ms Grahame made no complaint about the conduct of the trial judge on the stay application at the time that application was made, nor at the time of the trial. Nor did she appeal the trial judge’s refusal to grant a stay.

This sub-ground again raises for consideration the duties of a trial judge to a self-represented litigant, but with a focus on whether the trial judge provided sufficient assistance to Ms Grahame, rather than on prejudgment. The trial judge’s role was not to be Ms Grahame’s advocate. She was required to maintain the reality and appearance of judicial neutrality at all times and to both parties.

Having reviewed the transcript, we do not consider that the trial judge failed to discharge her duties to Ms Grahame in relation to the stay application. Ms Grahame says that it was clear from her written submissions in support of the stay and from what occurred in court that she ‘did not fully understand what [she] had to do to establish that special or exceptional circumstances existed’. She then says that the trial judge did not explain to her the various elements she needed to satisfy to justify the granting of a stay.

We reject that submission. At the outset of this part of the hearing, the following exchange occurred:

HER HONOUR: And I think you understand from your — as your submissions would indicate, that you’ve got to show special or exceptional circumstances to warrant the granting of a stay.
MS GRAHAME: Yes.

The trial judge was entitled to take Ms Grahame’s ‘yes’ as indicating that Ms Grahame understood what was required in relation to that aspect of a stay application. The trial judge also returned to the question of special circumstances later in the hearing:

HER HONOUR: Ms Grahame, in your reply submissions that you filed this morning, you acknowledge, as I’ve said, that you have to show special or exceptional circumstances to take the case out of the general law that an appeal does not (indistinct) a stay. That’s your submission. You acknowledge that.
…
MS GRAHAME: Yes.
HER HONOUR: You understand that to be the legal position.
MS GRAHAME: Yes.
HER HONOUR: Yes.
MS GRAHAME: I do.
HER HONOUR: And then you contend that you have shown that the case is special, and then you say, ‘I’m a self-represented litigant who did not know what a stay was, or when it was appropriate to apply for a stay’.
MS GRAHAME: Correct.
HER HONOUR: Saying that you’re a self-represented litigant doesn’t make the case a special circumstance. There are lots of people who are self-represented litigants who might come before the court and set forward grounds for a stay.
MS GRAHAME: Yes.
HER HONOUR: You also acknowledge that special circumstances, you say, might exist where someone would be deprived of the fruits of the appeal if a stay of execution were not granted.
MS GRAHAME: Yes.
HER HONOUR: So there you’re really referring to the Court. Well, if you were successful in your appeal, then if the stay of execution weren’t granted the house might’ve been sold and you wouldn’t be able to get the house back.
MS GRAHAME: Correct.

Again, from that exchange, the trial judge was entitled to understand that Ms Grahame knew that there was a requirement for special circumstances and had sought to put before the Court matters that she said constituted special circumstances.

At the conclusion of Ms Grahame’s oral submissions on the stay application, the following exchange occurred:

HER HONOUR: Well, I was asking whether there are any special or exceptional - - -
MS GRAHAME: That’s right.
HER HONOUR: - - - circumstances that you can point to.
MS GRAHAME: No. I don’t know what is normal in a court of law and I don’t know what’s special in a court of law. Special circumstances. No. I think I just have to answer no to that question. I don’t know.
HER HONOUR: All right. Is there anything further you wish to say in addition to what’s in your written submission that filed this morning?
MS GRAHAME: Other than the point that I made earlier that any reference to borrowing funds, I disagree with.
HER HONOUR: Yes.
MS GRAHAME: Yes. Thanks.

Although at this stage Ms Grahame indicated that she did not know what might constitute ‘special circumstances’ in a court, we do not think that at this point in the argument the trial judge was obliged to explain that issue further to Ms Grahame. Ms Grahame had put on written submissions articulating what she said were the relevant special circumstances and the trial judge had earlier discussed those matters with Ms Grahame. That was sufficient to discharge the trial judge’s duties to Ms Grahame as a self-represented litigant.

Also in the course of the hearing on 19 September 2019 the trial judge clearly and patiently explained to Ms Grahame the nature of the written submissions put by the Bank, including in particular that there was no undertaking as to damages, and the effect of such an undertaking. The judge then said to Ms Grahame ‘I’m going to give you the opportunity to think about whether you want to offer an undertaking so that the bank can take that on board before I deal with the application’.

In her written case, Ms Grahame says that, in one exchange, the judge interrupted her so as to cause her to lose confidence in an argument she was seeking to advance. That exchange was as follows:

MS GRAHAME: I have got a comment to make right now. I — I may not need the 15 minutes. I just, in terms of — I feel that an undertaking isn’t necessary because if the plaintiff were to win the appeal, then they would take possession of the home and what they claim is the debt outstanding is around $166,000 and I would - - -
HER HONOUR: It was when they issued the proceeding.
MS GRAHAME: That’s right.
HER HONOUR: I think it’s now up at about $200,000, isn’t it? I saw that somewhere in the material.
MS GRAHAME: Oh, I see. Oh, because — yes.
HER HONOUR: Because with every day the debt’s increasing because you’re not making payments.
MS GRAHAME: Yes.
HER HONOUR: And with every day that we don’t get the appeal heard and determined, the debt’s increasing.
MS GRAHAME: Yes, I didn't consider that, yes.
HER HONOUR: And you’re not making payments.
MS GRAHAME: Because I’m not — yes.
HER HONOUR: And if the property market turned adversely, it would be worse because the bank would then be at risk that they might not recover, if they were successful, the amount that they seek to claim against the property.
MS GRAHAME: Yes. My point was going to be that the increase in value of the property would cover the — any outstanding debt but your point that the debt has increased is, renders that point nugatory.
HER HONOUR: Right.
MS GRAHAME: So I do need the time to think about it.
HER HONOUR: So I think what I’ll do is I’ll stand.
MS GRAHAME: Yes.
HER HONOUR: I’ll give you 15 minutes to consider that position. In the meantime, I’ll also ask Ms Gobbo if she might take on board the suggestion and she can seek some instructions so that when we come back you can tell me what your position is and then we can go on with the hearing of the application.
MS GRAHAME: Yeah. Gosh, it’s tricky. Yes, I do need the time.
HER HONOUR: Well, I’m only raising it because at the moment it is something that the bank’s raised, it’s an opportunity for you to consider because your difficulty is you have to show special circumstances which really requires you to show the obvious strength of your grounds of appeal. You have to show that there’s a special circumstance about the case, that you've got good arguable grounds of defence and I’ve said that you’ve got good arguable grounds of defence.

It is apparent from this exchange that the trial judge was ensuring that Ms Grahame properly understood the position in relation to the amount of the debt owing to the Bank, and the consequences of Ms Grahame offering an undertaking as to damages. Having made sure that Ms Grahame did understand, the trial judge then stood the matter down briefly for Ms Grahame to consider what course she might take. This course of action was entirely appropriate on the trial judge’s part. It involved nothing that could give rise to an apprehension of bias.

We note that in her written case Ms Grahame has sought to fix upon the final sentence of the above exchange as the trial judge expressing the view that Ms Grahame had ‘good arguable grounds of defence’. That is what is recorded in the transcript, read literally. However, we think that this could be an error of transcription, or perhaps an error of expression in the course of oral argument. It appears to us that, when read in context, the trial judge is seeking to impress upon Ms Grahame what Ms Grahame needs to demonstrate, and not to express a view that Ms Grahame in fact has ‘good arguable grounds of defence’. When understood in that way, there is no inconsistency between what was said at the hearing and what the trial judge said in her reasons for denying the stay. In any event, a comment made by a judge in the course of oral argument cannot be used to undermine the ultimate conclusion the judge reaches as to the outcome of the application. Nor does it demonstrate, or even suggest, apprehended bias.

Finally, Ms Grahame says that the decision to deny her application for a stay gives rise to an apprehension of bias because its effect was to cause ‘a self-represented litigant to be evicted from her home in the middle of a court case’. That consequence gives rise to no apprehension of bias on the part of the trial judge.

In short, sub-ground B is doomed to fail. There was nothing in the conduct of the trial judge at the hearing on 19 September 2019 that suggested that she had unfair expectations of Ms Grahame, or that she was not considering Ms Grahame’s arguments on their merits, or that otherwise indicated an apprehension of bias.

Sub-ground C: Alleged criticism over impermissible withdrawal of admissions

Sub-ground C is as follows:

The primary judge was critical of me for impermissibly withdrawing admissions in circumstances where I had expressed to the court that I did not know which parts of my pleadings this phrase pertained to, and where her Honour did not explain to me what the phrase pertained to, and I was not given an opportunity to respond to the criticism.

In support of this ground Ms Grahame relies on the transcript and ruling of 19 September 2019, the transcript of 4 December 2019 and the trial judge’s judgment dated 3 March 2020. We will deal with those matters in turn.

As to the hearing on 19 September 2019, that was the occasion on which Ms Grahame sought leave to amend her pleadings. The proposed amended defence and counterclaim were before the court, as an exhibit to an affidavit. It is apparent from the transcript that the trial judge carefully and clearly sought to assist Ms Grahame to understand what was required when amending a court document. Such assistance was entirely compatible with the trial judge’s duty to a self-represented litigant. We note also that, at the first directions hearing on 28 August 2019, the trial judge had spent some time explaining the process of amendments and the limitations applicable to amendments on an appeal by way of a hearing de novo.

Counsel for the Bank raised with the trial judge the fact that, as part of her proposed amendments, Ms Grahame sought to withdraw admissions she had previously made in the pleadings. The following exchanges then occurred:

HER HONOUR: Well, ordinarily a party would need leave to withdraw an admission.
MS GOBBO: Yes.
HER HONOUR: And so I'll note that for Ms Grahame's benefit that if leave were to be granted for her to file and serve an amended defence and counter-claim, by allowing that process to go forward with the preparation of a document in conformity with the rules that substantially reflects the material that she’s already put before the court, that's not an acknowledgement or permission to withdraw admissions without formally seeking leave to do so.
MS GOBBO: Yes. Thank you, your Honour.
HER HONOUR: And to the extent that it becomes apparent in the event that an amended document is filed that there is a withdrawal of an admission, then that would have to be the subject of argument at the hearing of the appeal.
MS GOBBO: Yes. Thank you, your Honour.
HER HONOUR: … and noting that the ability to file the amended pleading is not an invitation to withdraw admissions, and that if any admissions were sought to be withdrawn, they would have to be the subject of an application made at, or in advance of, the hearing of the appeal.
MS GOBBO: Thank you, your Honour.
HER HONOUR: Thank you, Ms Gobbo. Ms Grahame.
MS GRAHAME: Yes. Yes.
HER HONOUR: You're welcome to say anything further, but what I propose to do with your amendment application is to say that, to enable your appeal to be heard with you having given proper notice of all of the defences that you raise, that you be given leave to file and serve an amended defence and counter-claim.
MS GRAHAME: Yes.
HER HONOUR: Substantially in the form, and by that, I mean the substance, substantially in the substance of what you’ve provided in your Exhibit A to your affidavit. That’s not an invitation, as I have said, to withdraw any admissions but it’s an invitation for you to re-engross the document that you’ve prepared - - -[37]

[37](emphasis added).

Then, before her Honour left the amendment application to move on to the stay application, Ms Grahame asked for further clarification on the withdrawal of admissions point. There was then a lengthy exchange between Ms Grahame and the trial judge, which we need not set out in full. In that exchange the trial judge explained to Ms Grahame what the position was in relation to withdrawal of admissions; that if she wished to change an admission, she would have to give a reason why she wished to do so; that this was not an opportunity for Ms Grahame to run a different case than she ran before the Judicial Registrar, but rather to better articulate her case. The exchange between the trial judge and Ms Grahame concluded as follows:

HER HONOUR: And Ms Gobbo is just saying, ’Well, yes, I understand that too but this is not an invitation to amend or withdraw any admission that is have been made’.
MS GRAHAME: Okay. That sounds - - -
HER HONOUR: So that’s very clear - - -
MS GRAHAME: That sounds reasonable.
HER HONOUR: Yes.
MS GRAHAME: Okay. All right.

As to the ruling on 19 September 2019, the trial judge said this:

I have also made clear during the course of the hearing this morning that by allowing the defendant to re-engross, and in that sense, amend her defence and counter-claim in the manner indicated, that this is not an invitation to withdraw admissions and that if she seeks to withdraw admissions, they would have to be the subject of an application for leave (which could probably be made orally at the hearing of the appeal) but on notice to the plaintiff.[38]

[38]Grahame v Bendigo and Adelaide Bank Ltd (Supreme Court of Victoria, Sloss J, 19 September 2019) 56–3 (emphasis added).

Contrary to Ms Grahame’s written case, this statement in the trial judge’s ruling involved no criticism of Ms Grahame for impermissibly withdrawing admissions, given that no amended pleading had been filed. It was simply a reiteration of matters that had been mentioned in the course of the hearing as to the limitation on the leave to amend that had been granted.

As to the trial on 4 December 2019, counsel for the Bank raised with the trial judge the fact that, in Ms Grahame’s amended pleadings, a number of admissions had been withdrawn. The trial judge observed that no leave had been given to withdraw admissions. Other than that, nothing was made of the purported withdrawal of the admissions. But no application was made by Ms Grahame for leave to withdraw her earlier admissions in the original defence, either prior to or at the trial. That was so even though at the hearing on 19 September 2019 the trial judge made it clear that leave would be required and, if sought, would be dealt with at the trial.

As to the trial judge’s reasons, her Honour noted that, at the hearing on 19 September 2019, she had given Ms Grahame leave to amend her defence and counterclaim, but had expressly stated that if Ms Grahame sought to withdraw any admissions she had made, she would have to seek leave to do so. After leave was given, Ms Grahame had filed an amended defence and counterclaim in which she purported to withdraw certain admissions she had made in her original defence. As noted above, no application for leave to withdraw admissions was made. In light of that, the judge said as follows:

The plaintiff has also pointed out that the amended pleading has gone beyond the scope of the leave to amend that was given by the Court on 19 September 2019, insofar as the defendant has purported to withdraw admissions she had made. Having regard to the express terms in which the Court granted leave to the defendant to amend her defence and counterclaim, it is not open to the defendant to withdraw those admissions.[39]

[39]Reasons [65].

Ms Grahame says that the trial judge was critical of Ms Grahame for withdrawing admissions in both the trial judge’s ruling on the stay application and her reasons for judgment. We do not consider that the trial judge was critical of Ms Grahame; rather, she was simply observing that leave had been given to amend but not to withdraw admissions, and that Ms Grahame had impermissibly withdrawn admissions. That is an apt description of what occurred. The use of the adjective ‘impermissibly’ is not a criticism; rather it reflects the fact that admissions had been withdrawn without leave to do so. In any event, even if the trial judge is to be understood as having been critical of Mr Grahame, that does not demonstrate apprehended bias.

Ms Grahame submits in her written case that it is ‘incumbent upon a decision-maker to inform a litigant of any relevant issues … and to also provide the litigant with an opportunity to make submissions in relation to those issues before a decision is made’. The authorities Ms Grahame cites are concerned with the duties on administrative decision-makers.[40] But it can be accepted, for present purposes, that, consistently with the authorities we referred to at [49] and [50], above, a judge owes the litigants appearing before him or her a duty of procedural fairness and that, in relation to a litigant in person, that duty may extend to ensuring that the person understands various issues that arise in the course of the trial.
[40]Ms Grahame referred to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 579; [1994] FCA 1074, Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 and Kioa v West (1985) 159 CLR 550; [1985] HCA 81.

We consider that in the present case the trial judge discharged her duty. She drew Ms Grahame’s attention to the issue concerning withdrawal of admissions, explained what that meant and clearly stated that leave had not been given to withdraw any admissions previously made. She clearly stated that if Ms Grahame wished to withdraw any admissions, she would need to seek leave to do so, either before or at trial. Ms Grahame did not make such an application. To the extent Ms Grahame’s complaint is that she did not know which paragraphs of her amended pleading constituted the withdrawal of admissions, counsel for the Bank provided at least one example at the hearing on 19 September 2019. In those circumstances, we do not consider it was for the trial judge to identify for Ms Grahame each paragraph of her pleading that contained an admission or each paragraph of her amended pleading that withdrew an admission.

In any event, we do not consider that any prejudice flowed to Ms Grahame as a consequence of the matters about which she complains. In her written case she explains the impermissible amendments as intended to make clear who the defendant was — that is, whether the defendant was HEATHER JEAN GRAHAME (the ‘corporate entity’) or ‘Heather Jean Grahame’ (the ‘living person’). An argument based on whether Ms Grahame’s name is written in capital letters or not has no basis in law and is manifestly hopeless. Thus the amendments that the trial judge regarded as impermissible would, even if permitted, not have assisted Ms Grahame’s case. Nor does this aspect of the case support Ms Grahame’s suggestion of apprehended bias.

Sub-ground D: The trial judge’s references to authorities

By sub-ground D, Ms Grahame contends that the trial judge, in her judgment dated 2 March 2020:

(a) referred to seven cases relied upon by the Bank in its written submissions;

(b) failed to refer to 17 cases relied upon by Ms Grahame in her written submissions;

(c) referred to a ‘new’ case, K Sheridan v Colin Biggers Paisley, which supported the Bank’s case and to which Ms Grahame was not given an opportunity to respond; and

(d) in a footnote referred to four additional ‘new’ cases which similarly supported the Bank’s case.

None of these matters make good a claim for apprehended bias.

First, it is not necessary for a judge to mention the cases referred to in a party’s written submissions, particularly if those cases are irrelevant or inapplicable. No apprehension of bias is thereby generated. In the present case, many of the cases relied upon by Ms Grahame were American cases with no relevance or application to the present proceeding. Others, although Australian, were simply not relevant to the matters before the trial judge. In contrast, the authorities referred to by the Bank were relevant to the proceedings and were thus considered and referred to by the trial judge.

Second, the trial judge did not err in referring to cases that had not been the subject of submissions. There is no prohibition on a judge referring to cases not referred to by the parties,[41] and to do so does not necessarily demonstrate any apprehension of bias or other breach of procedural fairness. In relation to K Sheridan v Colin Biggers Paisley, her Honour observed that in that case Black J had referred to several of the cases in which arguments similar to those of Ms Grahame were advanced by other self-represented litigants. The case was thus simply used as a short-hand reference for locating those other cases. We infer that Ms Grahame’s complaint about the ‘new’ cases referred to in a footnote is a reference to footnote 83 of the trial judge’s judgment, where she set out footnote 10 of Black J’s judgment, which referred to several other cases. The Bank accepted that these cases had not been referred to by the parties and in that sense were ‘new’. However, even if that be accepted, there was no error in the trial judge referring to those cases. Her Honour did not otherwise rely upon them; rather, she undertook an extensive analysis of Ms Grahame’s submissions. The passing reference to ‘new cases’ does not support an argument of prejudgment and does not give rise to any apprehension of bias.
[41]See, eg, R v Ellis (New South Wales Court of Appeal, Kirby P, 16 July 1993), 19; DPP (Cth) v Rosa (2010) 79 NSWLR 1, 68 [284]–[286] (Simpson J); [2010] NSWCCA 194.

Sub-ground E: Allegation that the trial judge suggested Ms Grahame is a liar

By this sub-ground Ms Grahame says that the trial judge suggested that Ms Grahame had lied on 28 August 2019, when, in answer to a question, Ms Grahame said she did not have any assistance with her case.[42] Ms Grahame then points to a passage in the trial judge’s judgment where her Honour described Ms Grahame’s pleading as ‘apparently … drafted by the defendant herself, and not by a lawyer’.[43]
[42]We note that Ms Grahame gave no transcript reference in her written case and we are unable to discern the passage(s) to which she is referring.
[43]Reasons [65].

There is no substance in this aspect of Ms Grahame’s claim. The statement in the reasons is entirely consistent with Ms Grahame telling the judge on 28 August 2019 that she did not have any assistance with her case. We can discern no basis for an argument that the trial judge had suggested that Ms Grahame was a liar. It follows that this cannot lead to an apprehension of bias.

Sub-ground F: Allegation of institutional bias against self-represented litigants

By sub-ground F, Ms Grahame alleges that there is an institutional bias against self-represented litigants, manifested by the ‘derogatory and disrespectful words’ used to describe both Ms Grahame’s claims and those of other self-represented litigants who seek to raise novel and unusual claims. The words of which she complains are the description of her claims as ‘embarrassing and unintelligible’, and her defence and counterclaim as ‘scandalous, frivolous or vexatious’, by counsel for the Bank.

This ground may be shortly disposed of. First, the words complained of are, with the exception of ‘unintelligible’, legal terms of art that are used to describe claims of a certain character, whether made by a self-represented litigant or not. They do not demonstrate any apprehension of bias against self-represented litigants, whether institutional or otherwise. Nor does use of the word ‘unintelligible’ indicate any bias; it is simply a descriptor of Ms Grahame’s arguments.

Ms Grahame also complains about the comparison of her case to the Canadian case of Meads v Meads, where Rooke ACJ used the term ‘organised pseudolegal commercial argument’[44] to describe claims of a similar nature to those made by Ms Grahame. We see no error in reference to this case; but we note, for completeness, that the trial judge did not place any reliance on it; rather it was included in a footnote which quoted from K Sheridan, and later, in another footnote, in a quotation from the Bank’s written submissions.
[44][2012] ABQB 571, [1].

Under this sub-ground, Ms Grahame also contends that the Rules and the CPA are ‘biased against self-represented litigants’, because ‘they contain no clauses that judges must ensure a fair hearing’ by providing a self-represented litigant with ‘appropriate assistance, explanation, and leniency in regard to the rules’. It is trite to observe that, as an aspect of the exercise of judicial power, judges owe a duty of procedural fairness to litigants. As discussed above, in relation to litigants in person that can require that judges assist self-represented litigants and explain matters to them (although it does not require that they be accorded ‘leniency in regard to the Rules’). The fact that those duties are not expressly contained in the legislation to which Ms Grahame refers does not negate the existence of those duties. This point is without substance.

Conclusion on Ground 1

Given the conclusions we have reached above, it is apparent that Ground 1 has no prospects of success. That is so whether each sub-ground is considered individually or cumulatively.

Ground 2: Ms Grahame’s case had no real prospects of success

The trial judge concluded that Ms Grahame’s defence and counterclaim had no real prospects of success. Ms Grahame contends that was an error. She explained her substantive arguments in her written case as follows:

My case involves several substantive arguments: that the arrangement with the bank was not a loan and the bank engaged in deceptive conduct by referring to it as a ’loan‘; that the standard form contract is grossly unfair and unconscionable; that I had performed an acceptance for value on the orders of [the Judicial Registrar] where the debtor was the corporate entity HEATHER JEAN GRAHAME and thus it is the government’s responsibility to provide the credit to offset the debt listed in the Judicial Registrar’s orders; and that, as a result of assigning the birth certificate to the Department of the Treasury, I am not liable for any government debt in the corporate entity name.
In support of these arguments, I had provided evidence to the court that:
(a) There is a legal difference between a person’s name spelt in title case and capital letters, evidenced by the bank requiring me to write my name on the ’loan‘ and mortgage documents in all-capital letters (my affidavit, 13 February 2019, paragraph 6); tax documents are always in the all-capitals name (my affidavit, 8 August 2019, paragraph 85 and exhibit P); and a letter from Fines Victoria (a government department) which claims it can take money from bank accounts (my affidavit, 8 August 2019, paragraph 93 and exhibit O);
(b) Acceptance for value is an effective means of returning a debt notice in the all-capitals name to the issuer of the debt (my affidavit, 8 August 2019, paragraph 102) and the government can issue credit to offset a debt in the all-capitals name (my affidavit, 8 August 2019, paragraph 103 and exhibit P);
(c) The arrangement is not a loan because the credit which the bank gives to a customer is newly-created (my affidavit, 8 August 2019, paragraph 16 and exhibits D and E) and the bank takes virtually no risk or can reduce its risk to zero (my affidavit, 8 August 2019, paragraphs 41 to 46 and exhibit E);
(d) The contract is unconscionable because the customer is placed into a position of disadvantage, financial need and dependence on banks issuing new credit as a result of banks charging interest and thereby creating an economy of ever-increasing indebtedness (my affidavit, 8 August 2019, paragraphs 55 to 66 and exhibits H, I, J, K).

As the Bank observed in its written case, Ms Grahame was not able to provide the court below with any applicable authority to support her contentions. In contrast, the Bank pointed to various authorities where similar arguments had been made and dismissed. In our opinion, the trial judge was correct to conclude that Ms Grahame’s arguments had no real prospects of success, for the reasons set out in the trial judge’s reasons for judgment and summarised in Part D, above. This ground has no prospects of success.

Ground 3: Requirement for caution in summary dismissal

By Ground 3 Ms Grahame contends that the trial judge failed correctly to apply the test for summary judgment set out in Lysaght, in particular by failing to exercise due caution in terminating proceedings summarily. She asserts that there was an ‘obvious lack of certainty’ in the proceeding that meant summary judgment was inappropriate. However, the trial judge referred to Lysaght, and to the need to apply caution. She applied the correct test. The ‘lack of certainty’ relied upon by Ms Grahame is based on occasions on which the trial judge identified a lack of clarity in Ms Grahame’s arguments and submissions. A lack of clarity of that kind does not mean that summary judgment is inappropriate.

Given the trial judge’s conclusion that the Bank had made good its claim, and that Ms Grahame’s defence and counterclaim had no real prospects of success, her Honour was correct to grant summary judgment. This ground has no prospects of success.

Ground 4: Section 64 of the Civil Procedure Act

By Ground 4, Ms Grahame asserts that the trial judge erred in failing to consider whether, in the exercise of her discretion under s 64 of the CPA, she should order that the proceeding proceed to trial despite her concluding that the defence and counterclaim have no real prospects of success. Alternatively, Ms Grahame contends that the trial judge erred by not recognising that the proceeding involved matters of public importance and that is was not in the interests of justice to deal with the proceedings summarily.

It is plain that the trial judge considered s 64 of the Civil Procedure Act and considered whether there was any question which ought to be tried.[45] Her Honour’s discretion did not miscarry. For completeness, we note that we do not accept that the proceeding involved matters of public importance such that it was not suitable for summary disposition. This ground has no prospects of success.
[45]Reasons [167].

Ground 5: placing efficiency ahead of justice

By Ground 5, Ms Grahame contends that the trial judge erred ‘by placing efficiency ahead of justice’. There is no merit in this submission.

In her written case, Ms Grahame complains about the trial judge’s reference to the overarching purposes of the Civil Procedure Act at the first directions hearing on 28 August 2019. Plainly the judge is required to have regard to that Act, and its overarching purposes, in the conduct of the proceedings. Section 7(1) provides that the overarching purpose of the Act and the Rules, in relation to civil proceedings, is ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’. It was therefore appropriate for the trial judge to have regard to efficiency in her resolution of the application for summary judgment.

Furthermore, to the extent this is a complaint about the weight the trial judge accorded to efficiency, as opposed to the just resolution of the issues, such a complaint falls to be resolved by reference to the principles in House v The King.[46] We can discern no error in the exercise of her Honour’s discretion in this regard.
[46](1936) 55 CLR 499; [1936] HCA 40.

This ground, too, has no prospects of success.

F. Application for leave to amend the application for leave to appeal

Ms Grahame has also sought to amend her application for leave to appeal. In that regard, the Registry did not accept for filing the following documents:

(a) Ms Grahame’s proposed amended Form 64A (amended application for leave to appeal) dated 20 February 2021;

(b) Ms Grahame’s affidavit with exhibits dated 20 February 2021; and

(c) Ms Grahame’s affidavit with exhibits dated 9 July 2021.

Ms Grahame did not file a formal application for leave to amend her application for leave to appeal. However, her email correspondence with the Court dated 12 and 25 February 2021 may be treated as such an application, noting that she is self-represented. That email correspondence and the attachments have been placed on the Court file. In that way the documents identified in [108] appear on the court file.

Ms Grahame’s proposed amended application for leave to appeal identifies the following amendments (in summary form):

(a) An allegation of actual bias is added as new Ground 1.

(b) The orders sought are amended to remove orders [e] and [k], as originally sought, and to add orders directed to:

(i) having the CEO and Managing Director of the Bank charged with perverting the course of justice;

(ii) having the trial judge charged with perverting the course of justice and stood down as a judge;

(iii) requiring the Bank to pay to Ms Grahame $10 million in damages;

(iv) requiring the trial judge to pay Ms Grahame $250,000 in damages; and

(v) consequential orders concerning the payment of such damages.

The application to amend the application for leave to appeal is opposed by the Bank, on the ground that the amendments in relation to relief are likely to scandalise the Court. The Bank sought that the application to amend not be placed on the Court file, or that it be removed from the Court file if it had been placed on the file. Alternatively, if the application remained on the Court file, the Bank did not oppose leave being granted in relation to the new ground of actual bias, but sought that leave not be granted to amend the application in so far as it concerned the relief sought. The Bank did not object to the filing of the affidavits, but urged us to give them such weight as we think appropriate.

There are two aspects of the rules that are appropriate to consider in this context. First, pursuant to r 27.07(b) of the Rules, where a document for use in the Court contains scandalous matter, the Court may order that, if the document has been filed, it be taken off the file.

Second, under r 36.01 of the Supreme Court (General Procedure) Rules, this Court may, at any stage, grant leave to a party to amend any document in the proceeding in order to determine ‘the real question in controversy between the parties to any proceeding’. While each exercise of this discretion will necessarily turn on its own facts, the primary question for the Court always remains whether the proposed amendment would be in the interests of justice.[47] Some of the considerations that may bear on the answer to this question include: [48]
[47]Traffic Technique [2020] VSCA 319, [52], [58]; Northern Health v Kuipers [2015] VSCA 172, [28], [33] (‘Kuipers’). See also CPA s 9(1).
[48]Kuipers [2015] VSCA 172, [28], citing Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd’s, London [2011] VSC 370, [8]; AON Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175; [2009] HCA 27.

(a) whether there will be a substantial delay caused by the amendment;

(b) the extent of any wasted costs;

(c) whether there is an irreparable element of unfair prejudice caused by the amendment;

(d) concerns of case management arising from the stage at which the amendment is sought;

(e) whether the grant of the amendment will lessen public confidence in the judicial system; and

(f) whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.

Further, notwithstanding the breadth of this discretion, the Court will not permit an amendment that has no real prospects of success, in the sense that it is ‘unarguable, fanciful or futile and could not realistically add to the [applicant's] prospects of obtaining the relief sought’.[49] An amendment will be of this kind if it would be liable to be stayed or dismissed as ‘scandalous, frivolous or vexatious’ if made.[50]
[49]Mandie v Memart Nominees Pty Ltd [2016] VSCA 4, [47].
[50]Andeco Construction Group Pty Ltd v Greater Union Pty Ltd [2009] VSC 470, [4]. The Court has such a power under either r 23.01(1)(a) or its inherent jurisdiction: [10].

Thus, under both rules it is relevant to consider whether the amendments proposed by Ms Grahame are scandalous.

Generally speaking, a claim or defence will be seen as ‘scandalous’ if it contains allegations of ‘anything which is unbecoming to the dignity of the Court to hear’,[51] and which are immaterial to the case at hand.[52]

(a) Thus, in Manolakis v Carter, for example, the applicant’s amended application before the trial judge was struck out because it made allegations of ‘fraudulent or criminal conduct’ and other impropriety on part of the respondents without sufficient information in support.[53]

(b) Likewise, in Gunnarsson-Wiener v Iles, the appellant’s notice of appeal was held to be scandalous on the grounds that it contained various unfounded allegations directed toward the judiciary — including a claim of actual bias on the part of the trial judge and an implicit suggestion of criminal misconduct on part of a magistrate.[54]

[51]Cavill Business Solutions Pty Ltd v Jackson [2005] WASC 138, [25]. For similar formulations see Crocker v Toys ‘R’ Us (Australia) Pty Ltd [No 3] [2015] FCA 728, [9] (‘Crocker’); Sarto v Sarto [2021] VSC 295, [42].

[52]See Crocker [2015] FCA 728, [9]; Winters v Fogarty [2017] FCA 51, [80].

[53][2008] FCA 505, [12]. This finding was upheld on appeal: Manolakis v Carter [2008] FCAFC 183, [28]. See also Winters v Fogarty [2017] FCA 51, [80]; Crocker[2015] FCA 728, [9].

[54][2020] TASFC 1, [28]. For other cases where material has been struck out for containing unfounded allegations of judicial misconduct see A-G (NSW) v Mahmoud [2015] NSWSC 153; Donohue v Victorian Electoral Commission [2015] VSC 98; Monteiro v New South Wales [No 4] [2016] NSWSC 1626.

It should also be noted that the fact a party is self-represented does not affect the application or strictness of the principles we have set out above. That is consistent with the passage from Rajski, quoted at [50] above. Similarly, the Federal Court observed as follows in Bahonko v Sterjov:

[The applicant] is an unrepresented litigant. Normally, the Court attempts to ensure that a circumstance of that kind does not lead to unnecessary disadvantage. However, it is appropriate to make it clear that such a circumstance brings no special privileges and cannot justify lack of proper attention to the interests of other parties. It provides no reason to permit procedural or other conduct outside the standards of behaviour reasonably expected when a litigant exercises a right of access to this Court and its processes, whether at first instance or on appeal.[55]

[55](2008) 166 FCR 415, 417 [6] (emphasis added); [2008] FCAFC 30. See also Bahonko v Nurses Board of Victoria [2008] FCAFC 29, [10].

We have considered the applicant’s proposed amended application for leave to appeal, and we have read the affidavits attached to her email, notwithstanding that leave was not given to file those affidavits and they were not accepted for filing. Much of what is contained in the affidavits could not be said to be evidence; rather, the affidavit contains assertions, allegations and submissions. We give it very little weight. In our opinion, the amendments that the applicant seeks to make to the application for leave to appeal are scandalous and have no prospects of success. They include allegations of a serious nature against the trial judge and one of the Bank’s officers that are utterly unsubstantiated.

The only new ground of appeal that might conceivably fall outside the description ‘scandalous’ is the new ground based on actual bias. Although the Bank did not oppose this ground if the application was permitted to be filed, we consider that, in the present context, that new ground is scandalous, in that it makes a serious allegation against a judicial officer without any foundation whatsoever. But even if it were not scandalous, we consider it is not appropriate to permit Ms Grahame to add actual bias as a new ground. Having read the transcript of the hearings below, there is no evidence at all to support an allegation of actual bias. This new ground is doomed to fail and thus Ms Grahame should not now be permitted to amend her application to raise it.

In light of the above, we refuse the application for leave to amend the application for leave to appeal. We also order, pursuant to r 27.07(b) of the Rules, that the proposed Form 64A attached to Ms Grahame’s email dated 25 February 2021 be taken off the Court file.

G. Conclusion

For the reasons given above, the application for leave to amend the application for leave to appeal is dismissed, and leave to appeal is refused.

- - -

[2021] VSCA 222

16 August 2021